Judgment A. P. BHANGALE, J.:- By these appeals, the original accused have challenged the judgment and order of conviction and sentence passed by 2nd Additional Sessions Judge, Nagpur in Sessions trial No.670 of 2000. Upon conviction for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, the appellants have been sentenced to suffer imprisonment for life and to pay a fine of Rs.3000/- each, in default, to undergo rigorous imprisonment for six months. 2. Appellant Ramdas Shankarrao Madavi in Criminal Appeal No.354 of 2003 is original accused no. 1 while appellant Manik Ganpatrao Taiwade in Criminal Appeal No.308 of 2003 is original accused no.2. Appellants are hereinafter referred to as per their original status in sessions trial. 3. Accused no. 1 Ramdas and victim in this case viz. deceased Madhukar were related to each other while accused no.2 Manik was their common friend, residing in village Dhotiwada. On the fateful day, accused persons took in their company said Madhukar from his house. After some time, Nandlal, resident of the same village, came to PW 1 Sudhakar (elder brother of Madhukar) and informed him that Madhukar was lying in a pool of blood in Gondpura, village Dhotiwada. PW 1 Sudhakar rushed to the spot and removed Madhukar to Primary Health Centre, Kondhali where Madhukar was declared as brought dead. 4. It appears from the evidence of PW 2 Ramkrishna that at the relevant time, there was exchange of words between accused and Madhukar who was in their company. Madhukar gave a slap to accused no. 1 Ramdas asking him as to why he (accused no.1) had beaten his relative Kanthya. This witness separated quarrel and went to his house. Later, he came to know through Dashrath Madavi and B haurao I vnate that accused no. 1 Ramdas had inflicted knife blow to Madhukar. Further, it is disposed from the evidence of PW 3 Homeshwar that he followed the trio and saw that after touching the feet of Madhukar near the house of Dhanraj Patte, accused no. 1 Ramdas inflicted knife blow in the chest of Madhukar who started running and fell down near the house of Krishna Madavi from where PW 4 Ganesh with the help of some persons, brought Madhukar near School. 5. 1 Ramdas inflicted knife blow in the chest of Madhukar who started running and fell down near the house of Krishna Madavi from where PW 4 Ganesh with the help of some persons, brought Madhukar near School. 5. PW 1 Sudhakar Madavi, brother of deceased Madhukar lodged report of incident to Police Station, Kondhali on 15.8.2000 at about 03.00 0' clock. Dead body of Madhukar was sent for post-mortem examination. Dr. Misbahul Haque Ansari (PW 11) performed post-mortem examination. 6. On the basis of information lodged by PW 1 Sudhakar, investigation was undertaken by PSI Ramesh Deshmukh (PW 14) charge-sheet was placed before the Judicial Magistrate, First Class, Katol giving rise to Sessions Trial No.670 of 2000 against accused persons. The accused were charged on the ground that they, in furtherance of their common intention, committed murder of Madhukar Madavi by giving knife blow in his chest and thereby committed offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The accused pleaded not guilty and claimed trial. 7. The prosecution examined 14 witnesses to substantiate the case. Accused denied their culpability in their statements recorded under section 313 of the Criminal Procedure Code. 8. The prosecution rested upon direct evidence of PW 2 Ramkrishna, PW 3 Homeshwar, PW 4 Ganesh, PW 5 Sahudas and PW 6 Liladhar apart from panch witnesses, CA report and medical evidence of Dr Ansari (PW 11). The learned trial Judge accepted evidence qua the appellants and held them guilty for having committed murder of Madhukar Madavi and on conviction under Section 302 read with Section 34 of the Indian Penal Code, sentenced them as aforesaid. 9. We have heard learned Advocate Shri. Sudhir Malode for appellant No.1;. and learned Advocate Shri. Mahesh Singh for appellant no.2; as also learned A.P.P.S/Shri. Y. B. Mandpe and S. S. Doifode, representing the State of Maharashtra. 10. The evidence of homicidal death is revealed from the evidence of PW 11-Dr. Ansari, who conducted autopsy on the dead body of deceased Madhukar. According to Dr. Ansari, she found a stab injury located at left front side of chest which was 8 cm. x 4 cm. cavity deep between second and fourth rib; vertical in direction 2 cm. above and 2 cm. Ansari, who conducted autopsy on the dead body of deceased Madhukar. According to Dr. Ansari, she found a stab injury located at left front side of chest which was 8 cm. x 4 cm. cavity deep between second and fourth rib; vertical in direction 2 cm. above and 2 cm. below is incised wound described as muscle deep margins clean cut; lower angle clean cut and upper angle contuse on left side; third rib fractured, margins clean cut, fourth rib upper half cut margins clean cut. The witness opined that injury was ante-mortem. She noted following two injuries and found two litres of blood and blood clots in thorasic cavity : (i) pericardium; cut present; (ii) stab injury right ventricle 2 cm. in length/cavity deep; Thus, the Doctor's finding furnished medical evidence that external injury was corresponding to internal injury (i) and (ii) and that cause of death was shock due to stab wound and the injuries were sufficient in the ordinary course of nature to cause death and, furthermore, that the injuries were possible by knife (Article 9). The medical evidence also clearly indicates that above injuries noted were the result of a single blow only. Although alternative possibility is suggested to Dr. Ansari that a person running and falling forcefully on a sharp object may suffer such injury, we do not find enough ground to believe such a possibility in view of direct ocular evidence in this case. After considering post-mortem notes (Exh.50) in the light of Dr. Ansari's evidence, we have no doubt in our mind that the prosecution has succeeded in establishing homicidal death of Madhukar beyond reasonable doubt. 11. Turning now to the direct and circumstantial evidence led in this case, we have scrutinised it by giving our anxious and thoughtful consideration in the light of rival contentions. PW 1. - Sudhakar, threw light upon genus of the incident. According to him, both the accused had come at about 7.30 p.m. on 14.8.2000 and had called deceased Madhukar for some work. Madhukar had gone with N1 Ramdas and N2 Manik towards school. Later PW 1 Sudhakar came to know from one Nandlal about the incident that All Ramdas had given knife blow to Madhukar. The witness frankly admitted in cross-examination that there was no enmity between N1 Ramdas and Madhukar and that they were on good talking terms. Madhukar had gone with N1 Ramdas and N2 Manik towards school. Later PW 1 Sudhakar came to know from one Nandlal about the incident that All Ramdas had given knife blow to Madhukar. The witness frankly admitted in cross-examination that there was no enmity between N1 Ramdas and Madhukar and that they were on good talking terms. It also appears that A/I Ramdas had taken Madhukar by "friendly style". Contents of oral report (Exh.17) which was lodged by PW I Sudhakar on 15.8.2000 at Kondhali Police Station also corroborates the evidence given in Court by him. According to PW 2-Ramkrishna on 14.8.2000 about 8.00 p.m., he had witnessed exchange of words between NI Ramdas and Madhukar deceased) in front of the house of one Dhanraj Patte. PW 2 Ramkrishna had seen Madhukar giving slaps to appellant no. 1 questioning him as to why appellant no.1 had beaten Kanthya (relative of Madhukar). PW 2 Ramkrishna had intervened in the quarrel and taken Madhukar up to a shop and then left for his house. Later on, PW 2 Ramkrishna came to know about the incident that N1 Ramdas gave knife blow to Madhukar. The witness clarified in crossexamination that there was no hot exchange of words between Madhukar and appellant no.1, when he saw N1 Ramdas and Madhukar. PW 3 Homeshwar deposed that he had followed Madhukar ; All Ramdas and A/2 Manik ( appellant no.2) when they went together in friendly manner. When they reached near the house of Dhanraj Patte, N1 Ramdas was seen paying respect at the feet of Madhukar and thereafter asked him to count persons there and gave knife blow to the chest of Madhukar (victim), who started running and fell down near the house of Krishna Madavi. PW 3 Homeshwar did not try to intervene nor called for help. But he cannot be disbelieved merely for this reason as one may out of fear of the assailant, choose not to intervene or to raise shouts after witnessing a stabbing incident one may leave the spot without making hue and cry. There cannot be a set reaction from an eyewitness. The statement of PW 3 - Homeshwar was also recorded by learned Judicial Magistrate, First Class, Katol under section 164, Cr.P.c. and we find ample corroboration to the evidence deposed by PW 3. There cannot be a set reaction from an eyewitness. The statement of PW 3 - Homeshwar was also recorded by learned Judicial Magistrate, First Class, Katol under section 164, Cr.P.c. and we find ample corroboration to the evidence deposed by PW 3. Furthermore, PW 4 Ganesh had also seen both the accused catching hold of Madhukar when Madhukar gave slaps to N1 Ramdas ; N2 Manik instigated him and then N1 Ramdas took out knife and gave knife blow to the chest of deceased Madhukar. Madhukar ran down chased by N1 Ramdas while N2 Manik went to his house while Madhukar fell down near the house of Krishna Madavi. The statement ofPW 4 Ganesh was recorded u/s.164 of Cr.P.c. by learned JMFC Katol on 7.9.2000. We do find corroboration in respect of material particulars of incident that N2 Manik had instigated A/1 Ramdas to assault Madhukar and had run away after All Ramdas assaulted on Madhukar's chest with knife. For the reasons stated above, we are not prepared to give much importance to omissions brought out in the course of crossexamination, more particularly bearing in mind that rustic witness from village may be overawed by the court atmosphere and may be led to give certain admissions in the nature of omissions or contradiction which mayor may not affect root of the prosecution's case. The facts and circumstances are needed to be considered in totality. PW 5 Sahudas was declared hostile witness and chose not to support prosecution case. PW 6-Liladhar had seen All Ramdas stabbing Madhukar with knife and when Madhukar started running away All Ramdas had followed him, Madhukar had fallen down near house of Kisan Madavi. 12. We do find ample corroboration to the ocular evidence in medical evidence of PW 11 -Dr. Ansari as well as in the evidence of recovery of weapon of offence under Panchnama (Exh.55). PW 13 Subhash deposed that in his presence All Ramdas had led police to the field of one Patil towards Dhotiwada and had taken out and produced knife (Art.9) from a channal (embankment). Chemical Analyser's report (Exh.74) in respect of viscera preserved from victim Madhukar's body do indicate that ethyl alcohol was present indicating that prior to the incident, Madhukar had consumed alcohol, noted as 140,106 and 122 milligrams per 100 milliliter found in viscera and blood sample of deceased sent for CA's report. Chemical Analyser's report (Exh.74) in respect of viscera preserved from victim Madhukar's body do indicate that ethyl alcohol was present indicating that prior to the incident, Madhukar had consumed alcohol, noted as 140,106 and 122 milligrams per 100 milliliter found in viscera and blood sample of deceased sent for CA's report. The finding by C.A. do furnish reason to believe that deceased Madhukar might have slapped A/1 Ramdas while under the influence of alcohol, giving rise to fury between them and A\2 Manik who instigated A/1 Ramdas that Madhukar shall be beaten. The panchnama about scene of offence (Exh.38) indicating presence of trace of blood at various places also corroborate direct evidence that deceased tried to run away. Further, corroboration is seen from the CA's report (Exh. 75) indicating that clothes of the victim recovered; earth sample (Exh.6) ; weapon recovered (art.9); stones recovered from spot (Exh.9 and 11) were found stained with human blood of Group 'A'. 13. With such overwhelming evidence to indicate culpability of accused nos. 1 and 2 for assaulting Madhukar in furtherance of their common intention shared between them, we cannot accept alternative possibility suggested by defence counsel that Nilkanth or Kanthya might have assaulted deceased Madhukar. Prosecution has examined PW 10 Nilkanth also who once had quarreled with the deceased to overrule such alternative possibility. Another criticism from defence counsel is that witnesses who deposed having witnessed the incident, were relatives and neighbours and, therefore, interested witnesses. This contention also does not impress us. In our opinion, evidence of such witnesses cannot be brushed aside because they would never spare the real culprits. Another contention is that there are omissions or discrepancies which can uproot the cart of the prosecution case. We are unable to accept the argument that prosecution story is totally shattered in cross-examination. Another contention is that the prosecution ought to have examined more witnesses, namely, Dashrath Madavi, Bhaurao Ivnate; Dhanraj Patte, Manohar Patte etc. and that non-examination is fatal to the prosecution case. We cannot accept this contention also because, it is quality of the evidence and not the quantity that matters. The prosecution is not expected to examine all and sundry once prosecution has unfolded its material narrative evidence on facts that accused nos. 1 and 2 in furtherance of their common intention, had assaulted victim Madhukar. We cannot accept this contention also because, it is quality of the evidence and not the quantity that matters. The prosecution is not expected to examine all and sundry once prosecution has unfolded its material narrative evidence on facts that accused nos. 1 and 2 in furtherance of their common intention, had assaulted victim Madhukar. Even assuming for the sake of argument that some more witnesses could have been examined by the prosecution nothing prevented the defence to apply to the trial Court to get them summoned as essential court witnesses. Defence cannot dictate as to which witnesses shall be examined by the prosecution. The remedy available under section 311, Cr.P.c. was neither applied for nor availed of by the defence. In our opinion, the prosecution could not have been compelled to examine witnesses dropped or cancelled by it unless ordered by the trial Court. For the aforesaid reasons, as a rule it is discretion of the Public Prosecutor concerned to lead as much evidence as is necessary to unfold the prosecution case. 14. Lastly, it is contended that the incident had arisen due to hot exchange of words without any premeditation and a single stab injury was caused on the spur of the moment and there was no intention to cause death or to commit murder. Learned counsel Mr. Mahesh Singh relied upon the judgment in the case of Deepak Bhikaji Vs. State of Maharashtra reported in 2003(1) Crimes 191 (SC). We have gone through the citation. It is true that when an act is committed without premeditation in a sudden fight, in the heat of passion arising from sudden quarrel without the offender having acted in cruel or unusual manner, the offence would be culpable homicide not amounting to murder. In the facts and circumstances of the present case, we do find from the genus of the incident that deceased Madhukar had accompanied with accused nos. I and 2 in friendly manner. Although All Ramdas may have carried the knife in his pocket, or near waist side, there is no material on record to establish positively that it was a deadly or dangerous weapon and forcibly used while causing injury. It appears that deceased had gone with All and A/2 in friendly manner. I and 2 in friendly manner. Although All Ramdas may have carried the knife in his pocket, or near waist side, there is no material on record to establish positively that it was a deadly or dangerous weapon and forcibly used while causing injury. It appears that deceased had gone with All and A/2 in friendly manner. There may not be premeditation between All and Al2, but they shared common intention on the spur of the moment and acted in the course of sudden quarrel which developed on the spot. We may also infer from the evidence that the deceased Madhukar who might have used abusive words under the influence of alcohol. It is one of the special circumstances brought to our notice. The sample of viscera was sent for expert's opinion and it is in evidence that ethyl alcohol was found present in the viscera as well as blood sample sent for analysis, we have referred to findings and opinion disclosed from CA report (Exh.74). Therefore, there is reason to believe that the deceased must have been in drunken condition at the time of the incident. Such circumstance cannot be overlooked because a drunken man under the influence of alcohol may talk irrelevant or abusively or may behave in irresponsible manner which may irritate immediately or provoke even a friendly person to develop fury and incite crime before passions can cool down. A/1 Ramdas may have got furious due to heat of passion and with timely instigation from A/2 Manik, it cannot be said that A/1 Ramdas took undue advantage or acted with cruelty or in an unusual manner. A single blow given under the circumstances indicate that offenders did not take undue advantage. For these reasons which may be considered as mitigating the penal liability, in view of the exception (4) to section 300. IPC which reads thus: "300 : MURDER: Except in the cases hereinafter excepted ... ...... ....... ....... ..... Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner..... (Explanation- It is immaterial in such cases which party offers the provocation or commits the first assault)" .... ...... ....... 15. (Explanation- It is immaterial in such cases which party offers the provocation or commits the first assault)" .... ...... ....... 15. We must therefore conclude that Exception 4 to Section 300, IPC is attracted and conviction and sentence imposed upon A/1 Ramdas and A/2 Manik needs to be altered from Section 302 read with section 34, IPC to section 304, Part I read with section 34, IPC and, in lieu of sentence of imprisonment for life imposed by the trial Court, we feel that sentence of rigorous imprisonment of ten years for both for each of the accused-appellants will meet the ends of justice. 16. The Appeals are, therefore, allowed to aforesaid extent. However, we do not propose to interfere with the sentence of fine as imposed by the trial Court which shall be in addition to the imprisonment as above. The accused no.2 Manik who is on bailshall surrender within four weeks to serve out the remainder of the sentence of imprisonment. His bail bonds shall stand cancelled. Appeal partly allowed.